Mainuddin Sk v. State of West Bengal

formal FIR was registered against 8 accused persons on 05.06.2008 and the investigation was initiated which ended in the submission of chargesheet against all the 8 FIR named accused persons under Section 302/34 of IPC. Charge was framed under Section 302/34 IPC against all the FIR named accused persons to which they pleaded not guilty and claimed to be tried. The prosecution cited 13 witnesses and exhibited certain documents in order to establish its case. The Ld. Advocate for the appellant stated that the Ld. Trial Judge failed to consider the infirmities in the prosecution evidence. Majority of the prosecution witnesses had not seen the incident and their evidence was based on hearsay. The sole eyewitness i.e. PW 2 suffered from severe contradictions and embellishments to be discredited. The prosecution witnesses could not establish the essential ingredients to comprise the offence punishable under Section 302/34 IPC. The evidence of the prosecution witnesses was merely speculative, based on hearsay and suspicion. The evidence of the sole eyewitness was not corroborated by the evidence of any other witness. Vital witnesses have not been examined. The Ld. Trial Court had ignored at the antecedents of the deceased and the fact of enmity and rivalry which existed between the appellants and the victim. The Ld. Trial Court believed the concocted story of the prosecution since the FIR was registered on 05.06.2008 4 and the matter was transmitted to the Ld. Magistrate only on 09.06.2008. The alleged incident took place at a very congested and busy market place and the Investigating Officer without citing any other local people relied on the testimony of the eyewitness believing it to be true from the very inception and did not produce any further corroborative evidence. There had been several lapses on the part of the Investigating Officer who did not produce the Maruti car hired for taking the deadbody of the victim to the hospital or its occupants or driver or owner. Moreover, the earth, hair cuttings, blood stained garments were not collected to identify the place of occurrence. The seizure of the offending weapon was illegal and manufactured since the Investigating Officer obtained the offending weapon not on the first search but after several searches. He did not put forth any independent witness to sign the seizure list apart from the family members of the deceased. Moreover, the family members of the deceased, the post occurrence witnesses, the eye witness supported the prosecution case out of ulterior motive. The seizure list was prepared in a perfunctory manner which did not bear the signature of the accused or the local persons. The seized offending weapon did not match the weapon exhibited in the Court. The prior antecedent of the victim was not enquired or investigated in the event of enmity between the parties regarding a case of rape pending against the deceased for commission of rape against the wife of the appellant no.1. The evidence of the ocular witness as well as the medical witness did not corroborate. There was no material to substantiate any motive to implicate the 5 appellants. The other co-accused similarly circumstanced had been acquitted except the present appellants. The appellants too have been falsely implicated and deserve to be acquitted and, therefore, the appeal should be allowed. The Ld. Advocate for the State submitted that the evidence of the eye- witness Krishno Pramanik was impartial and trustworthy. Moreover, the same corroborated with the medical evidence. Apart from lapses on the part of the Investigating Officer if any, the evidence of the sole eye-witness to have seen the appellants to inflict the injuries upon the deceased elaborately conformed to the nature of injuries detected by the Post Mortem Doctor as described in the post mortem report. There was no reason or occasion for the said eye- witness Krishno Pramanik to falsely implicate the appellants and therefore, his evidence is primary and ultimate for the appellants to get indicted. A circumspection of the evidence adduced by the prosecution witnesses reveals that PW 1 Abul Basar alias Basiruddin Sk, the father of the deceased stated that the time and the date of his son’s murder at the “hair cutting saloon” of Krishno Pramanik (PW 2). The deceased Fazle Rahaman had been to the aforesaid saloon for shaving his head and was stabbed by a knife on his back by the appellant Mainuddin being caught by Halinuddin @ Kalu. The said knife which pierced through the chest of the deceased, was big in size with a wooden butt. The appellant Mainuddin Sk. stabbed the deceased on the left side of his chest as well as on his lower abdomen. PW 1 was in the market at Harishpur. Hearing the clamour he came out of the market to know there was 6 a murder. He saw the appellant Mainuddin running with a knife in his hand accompanied with Halimuddin, uttering to have accomplished his job, followed by Faquir Mohammad, Mominur Sk., Mosibul Sk., Moniruddin Sk., Sairuddin Sk., Nulfuddin Sk. Thereafter he learnt that his son was murdered and he reached the aforesaid saloon of PW 2 and found his injured son who on his query replied that Halimuddin Sk. @ Kalu caught hold of him and Mainuddin Sk. stabbed him with a knife. Accused Mosibul Sk. stood at the entrance of the said saloon. The injured victim was taken to Murarai Rural Hospital by a Maruti car. PW 1 his son Mur Salim Sk, Tauhid Sk., Furu Sk. also reached the Hospital. On examination by the Medical Officer at the said hospital his son was declared dead. Police arrived at the hospital and prepared the inquest report which bore his signature marked as Ext. 1/1. PW 1 thereafter lodged a written complaint written by Md. Jakir Hossain according to his version in his presence. PW 1 identified the handwriting of Md. Jakir Hossain and the written complaint was marked as Ext. 2. During his cross-examination PW 1 inter alia stated there was no suppression or falsity of fact in the written complaint. He further stated that a police case has been initiated against the deceased Fazle Sk. on accusation of rape. PW 2 Krishno Pramanik a barber had a “hair cutting saloon” at a rented premise. On the date of the incident at about 8 to 8.30 am he attended the deceased Fazle Rahaman as his customer who was his known co-villager of the 7 village Nayagram. Mainuddin and Kalu Sk entered his saloon and pushed him aside. Kalu caught hold of Fazle Rahaman while Mainuddin Sk stabbed him on the back of his left shoulder with a knife. Further administered several blows on his chest, near the nose beneath the left eyes and on the lower part of the abdomen with the said knife. The victim Fazle Rahaman fell on the ground and the appellants left the place. Thereafter, the victim’s father, brother and other close relatives came to his saloon. The victim did not die instantly. He was taken to Murarai Rural Hospital by his father and other close relatives. Many people gathered at his saloon having learnt about the murder. PW 2 narrated the entire incident to the father, brother and other close relatives of the victim. He also narrated the incident to the Police Officer at the Murarai PS as well as to the Ld. Magistrate at Rampurhat Court. The signature of PW 2 was marked as Ext. 3/1, 3/2 and 3/3 on his statement recorded under Section 164 Cr.P.C by the Ld. Judicial Magistrate in Rampurhat Court. He further identified the offending weapon i.e. the knife with sharp edge and wooden butt produced in Court marked as MAT Ext. I. During his cross-examination, PW 2 stated to have been “badly engaged in managing the affairs inside” his saloon and could not ascertain the direction in which the accused went as he trembled with fear at the site of the crime committed in his presence. PW 2 thereafter, screamed as the victim was bleeding profusely with stab injuries fell on the ground. He further stated the victim lay on the ground of his saloon for 15-20 minutes as the crowd gathered. The “Ganji”, towel of PW 2 and the wearing apparel of the deceased 8 were stained with blood. PW 2 further stated the Police Officer had seen the blood line on the ground when he visited at the place of occurrence. PW 2 did not show the blood stained “Ganji” and his towel to the Police Officer. He further stated to have seen the offending weapon on the date of the occurrence and which was similar in shape, size and appearance as that of the weapon produced on the date of his deposition. PW 3 Santipada Pal, a Constable 403 at the Murarai PS identified his signature in carbon impression on the dead body challan marked as ext. 4/1. He also identified his signature on the seizure list showing seizure of the wearing apparels of the deceased marked ext. 5/1. The seized “check lungi” was identified by PW 3 marked as MAT Ext. II, however, the printed “sandow genji” of the deceased seized by the Police Officer was not produced before the Court. During his cross-examination he stated a printed “sandow genji”, a light blue coloured full sleeve shirt was produced before the Court. PW 4 Md. Zakir Hossain stated to have written the complaint as per the version of Abul Basar on 05.06.2008 which was read over and explained to him and considering the contents of the complaint to be correct, PW 1 signed the same. PW 4 identified his signature along with his father’s name on the document marked as Ext. 2/1. PW 5 Md. Tauhid Sk stated that Fazle Rahaman was murdered on

05.06.2008 at the saloon of PW 2. He was on his motor cycle when he saw several people rushing towards the saloon of PW 2. Reaching the saloon of PW 9 2 he saw the deadbody of Fazle Rahaman with bleeding injuries in a chamber of a quack doctor. He heard from PW 2 and others that Kalu Sk and Mainuddin Sk murdered Fazle Rahaman. The deadbody of the Fazle Rahaman was taken to the hospital by a Maruti van by him along with Basiruddin, Moorasalim and Furu Sk. After the deadbody was taken to the hospital at Murarai, the attending doctor declared Fazle Rahaman dead. Police arrived at the hospital and prepared an inquest report and the carbon copy of the inquest report bearing the carbon impression of his signature was marked Ext.1/2. During his cross-examination he stated to have gone to the chamber to the quack doctor situated near the saloon of PW 2 who did not extend or give any medical treatment to the victim. PW 4 could not enter the chamber of the quack doctor being crowded. PW 4 was not examined by the Police Officer in connection with this case. The deceased victim was the son of his maternal aunt. PW 5 stated the facts of the case for the first time before the Court. PW 6 Furu Sk saw a group of people running all over on the date of the incident. He heard a murder been committed at the saloon of PW 2. He saw Mainuddin and Kalu to run after committing the murder. Mainuddin was running with a knife in his hand. He saw the deadbody of Fazle Rahaman lying inside the saloon of PW 2 which was taken to Murarai Hospital by a Maruti van by Basiruddin, Salimuddin, Tauhid Sk and two to three other persons. During his cross-examination PW 6 stated the victim was his cousin’s son. On the date of the incident he was present at the Bus Stand of Harishpur 10 at the relevant point of time. He further stated to find the deadbody of the victim in excessive bleeding. PW 6 along with many people carried out the deadbody from the saloon. His hands and wearing apparels were stained with the blood of the victim. The deadbody of Fazle Rahaman was directly taken to the hospital. He further stated nobody dared to chase Mainuddin and Kalu on their way towards Harishpur Hat. PW 7 Dr. S. Poddar conducted the post mortem examination of the deceased Sk Fazle Rahaman and found the following injuries: “1. One penetrating injury measuring 1” long into 1/4” wide and 6” deep, placed vertically over posterior auxillary line of left axilla, just 2” below aximlary pit with a direction forward, inwards and medially in the muscle plain.

#2. Fracture of sterna end of left clavicle with local haemotomae.

#3. One lascerated wound 1/2" X1/2” X bone deep placed obliquely below lower lid.

#4. Extravessation of blood measuring 4” X 3” X muscle deep over upper part anterior chest wall.

#5. Extravassation of blood measuring 3”X 2” X bone deep placed vertically over left frontal eminence. On repeated wash and clearing, shows a linear crack fracture of frontal bone measuring 3”X hair line X both tables of frontal bones.

#6. Subdural intra cranial haemorrhage spread diffusely over both cerebral haemisphere.” 11 In the PM examination report marked as Ext. 6 PW 7 mentioned the death was due to the effects of above noted injuries which was ante mortem and homicidal in nature. PW 8 Latif Sk rushed to the saloon of PW 2 hearing an incident of murder and found that Fazle Rahaman was murdered. At that time, Mainuddin armed with a knife along with Kalu were fleeing away. Mainuddin threatened to kill anybody who tried to catch him. PW 9 Md. Abdul Hakim stated on 13.10.2008 at about 10 pm police officer accompanied by a constable and other members of the force went to the house of Mainuddin along with Mainuddin and Kalu. Mainuddin brought out a knife (chhora) kept under a “Taktposh” of his room situated on the east of his house. Mainuddin handed over the knife to the Police Officer stating to have committed the murder of Fazle Rahaman with the same which was seized under a seizure list at the spot. PW 9 signed the seizure list as a seizure witness and his signature was marked as Ext. 7/1. The seized knife was labelled by the Officer and he identified his signature on the carbon impression of the document marked as Ext. 8/1. He stated Moorselim had also signed the seizure list besides him. Mainuddin and Kalu refused to sign the seizure list. PW 9 identified the knife marked as Mat Ext. I, which was seized by the Officer under the seizure list. 12 During his cross-examination PW 9 stated on the day of murder of Fazle Rahaman the Police had been to the house of the accused persons who were absent and could not be traced by the police on search. PW 10 SI Faizel Bin Ahmed stated to have received a written complaint of PW 1 on 05.06.2008 and identified his endorsement of receipt of the FIR under his handwriting. His signature was marked as Ext. 2/2 and the formal FIR was marked as Ext. 9. PW 11 Moorsalim Sk stated to have heard a commotion near Harishpur Bus Stand. He went to the Place of occurrence i.e. the saloon of PW 2. On his way he saw the accused Mainuddin armed with a big knife (chhora) accused Halimuddin @ Kalu to run followed by six other persons. On reaching the saloon of PW 2 he found the deadbody of Fazle Rahaman. Fazle Rahaman was taken to Murarai Hospital where he was declared to be dead. From PW 2 he heard Mainuddin to inflict the stab injuries on Fazle Rahaman who was caught by Halimuddin @ Kalu. After the FIR was lodged Police came to their village and examined PW 11 and other available witnesses. On 13.10.2008 at about 10 to 10.30 pm police came to their village along with Mainuddin and Halimuddin Sk. Mainuddin brought out a big knife kept under a “Taktposh” inside the room of his house and handed over the same to the Police officer in his presence. He was a signatory to the seizure list depicting the seizure of the knife as a witness and his signature was marked as Ext. 7/2. He further identified the knife seized by Police Officer marked MAT Ext. I. He further 13 identified his signature as witness in carbon impression on the carbon copy of the inquest report marked Ext. 1/3. During his cross-examination PW 11 stated the absence of any enmity or grudge between the accused persons prior to the date of occurrence to the incident and they were on visiting terms to each other’s house. PW 12 Tushar Kanti Mondal identified his signature on the seizure list marked as Ext. 5/2 with regard to the seizure of one printed “sandow ganji” and one lungi. PW 13 Mozammol Mondal, the Investigating Officer visited the PO, drew the rough sketch map, recorded the statement of the available witnesses under Section 161 Cr.P.C. The rough sketch map prepared and signed by him along with the index was marked Ext. 10 collectively in two sheets. The wearing apparel of the deceased Fazle Rahaman at the time of his death under a seizure list entirely marked as Ext. 5 on 05.06.2008 in connection with UD Case No. 16/08 dated 05.06.2008. The seizure list concerning the seizure of the offending weapon on 13.10.2008 from the house of Mainuddin Sk was marked as Ext. 7. PW 13 identified the MAT Ext. II as well as MAT Ext. I. He stated to have examined and recorded the statement Md. Tauhid Sk on 05.06.2008 at the time of inquest and that of Mursalin Sk and Md. Abdul Hakim on

13.10.2008 at the time of seizure. He had produced PW 2 before Ld. Magistrate, Rampurhat to record his statement under Section 161 Cr.P.C. He further identified the inquest report prepared in carbon process marked as Ext. 14 1 and the deadbody challan in carbon process marked as Ext. 4. PW 13 collected the PM Report from the Rampurhat SD Hospital. He tried to arrest the accused persons on several occasions. However, the eight accused persons surrendered before the Ld. Court. On 22.11.2008 he submitted the chargesheet against eight accused persons under Section 302/34 of the Indian Penal Code. PW 2 Krishno Pramanik is the sole eyewitness in the instant case, in whose presence victim Fazle Rahaman was murdered. Apart from being a sole eyewitness, PW 2 is also an independent and impartial witness. He had seen the appellants Mainuddin and Kalu Sk to enter his saloon and he was pushed aside by them. The appellant Kalu Sk restricted the movement of the victim by holding him and the appellant Mainuddin stabbed the victim by a knife on several parts of his body. The injuries sustained by the victim as described by PW 2 in his evidence corroborate with the nature of injuries stated in the PM report marked Ext. 6 as found by the PW 7 Medical Officer namely Dr. S. Poddar. Being a barber by profession several people including the victim had been his customers. The evidence on record did not reveal any instance whereby PW 2 could have been biased in his deposition. The defence could not establish any inimical relationship, or any grudge to retaliate between PW 2 and the appellants to falsely implicate them into the murder of the victim. The statement of PW 2 recorded under Section 164 Cr. P.C. marked as Ext. 3 corroborates with his deposition before the Court in entirety without an iota of deviation. The defence could not shake his evidence during cross-examination. He further identified the offending weapon i.e. the knife marked as MAT Ext. 1 15 to be the same weapon with which the appellant Mainuddin had stabbed the victim Fazle Rahaman. The evidence of PW 2 being impartial and independent is of credence to be believed upon. Minor contradictions on the part of PW 2 if any are negligible in view of the scary atmosphere pervading him to have witnessed the murder of a person with a sharp weapon being fearful of his life being endangered. His dreadfulness and trepidation ultimately could not prevent him from appearing before the Court twice and get his statements recroded under Section 164 Cr.P.C. as well as his evidence. His evidence was above reproach, subordination and interestedness. Section 134 in The Indian Evidence Act, 1872

#134. Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, 1the Supreme Court, while considering the minor contradictions in the statement of the witnesses, held as under: "5 ... ... ... We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed in the mental screen. (2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. 1 (1983) 3 SCC 217 16 (3) The powers of observation defer from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in short time span. A witness is liable to get confused or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment." In the case of Vadivelu Thevar v. State of Madras2, the Hon’ble Supreme Court has observed thus: “…….Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a 2 (1957) SCR 981 17 single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……” The principles laid down in Vadivelu Thevar case (supra) have stood the test of time and reliance upon the same has been elucidated in many other decisions like, a. Namdeo vs State Of Maharashtra3;, "It is not seldom that a crime had been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court also stated; There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the 3 (2007) 14 SCC 150 18 court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. b. Shivaji Sahebrao Bobade v. State of Maharashtra4, c. Anil Phukan v. State of Assam5, In my opinion the evidence of PW 2 is wholly reliable based on its truthfulness, unbiasedness and quality. Reliance on such trustworthy evidence will exclusively outweigh any other evidence including lack of corroborative evidence PW 1, PW 5, PW 6, PW 9 and PW 11 were the relatives of the deceased Fazle Rahaman as well as the post occurrence witnesses. The Ld. Advocate for the appellants submitted the failure on the part of the prosecution to cite a single witness present in the locality on the relevant date and time when the incident took place. The Ld. Advocate for the appellant further submitted that PW 1, PW 5, PW 6, PW 9 and PW 11 as family members, relatives and interested witnesses concocted the entire incident to falsely inculpate the appellants into the offence of murder. In a congested market place apart from these witnesses no one else saw them running away threatening others of their certainty of work. Such fabrication should be discredited which otherwise